United States District Court, D. Colorado
ORDER GRANTING MOTION TO DISMISS FOR LACK OF PERSONAL
William J. Martinez United States District Judge
Benjamin Ullom (“Plaintiff”) brings claims
against Defendant Doctors Collection Services
(“Defendant”) arising under the Fair Debt
Collections Practices Act, 15 U.S.C. § 1692 et
seq (“FDCPA”). Now before the Court
is Defendant's Motion to Dismiss Pursuant to Fed.R.Civ.P.
12(b)(2). (ECF No. 8 (the “Motion”).) Plaintiff
timely filed a Memorandum of Law in Opposition to
Defendant's 12(b)(2) Motion to Dismiss (ECF No. 20
(“Response”)), which was followed by
Defendant's Memorandum of law in Reply to Defendant's
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(2) (ECF No.
22 (“Reply”)). For the reasons explained below,
Defendant's Motion is granted and the action is dismissed
for lack of personal jurisdiction.
purpose of a motion to dismiss pursuant to Rule 12(b)(2) is
to test whether the Court has personal jurisdiction over the
named parties. The plaintiff bears the burden of establishing
personal jurisdiction over a defendant. Behagen v.
Amateur Basketball Ass'n, 744 F.2d 731, 733
(10th Cir. 1984). As is true here, when the court does not
hold an evidentiary hearing before ruling on jurisdiction,
“the plaintiff need only make a prima facie
showing” of personal jurisdiction to defeat a motion to
dismiss. Id. (citing Am. Land Program, Inc. v.
Bonaventura Uitgevers Maatschappij, N.V., 710 F.2d 1449,
1454 n.2 (10th Cir. 1983)). A plaintiff “may make this
prima facie showing by demonstrating, via affidavit
or other written materials, facts that if true would support
jurisdiction over the defendant.” OMI Holdings,
Inc. v. Royal Ins. Co. of Can., 149 F.3d 1086, 1091
(10th Cir. 1998). To defeat the plaintiff's prima
facie case, a defendant “must present a compelling
case demonstrating ‘that the presence of some other
considerations would render jurisdiction
unreasonable.'” Id. (quoting Burger
King Corp. v. Rudzewicz, 471 U.S. 462, 477 (1985)).
obtain personal jurisdiction over a nonresident defendant,
the plaintiff “must show that jurisdiction is
legitimate under the laws of the forum state and that the
exercise of jurisdiction does not offend the due process
clause of the Fourteenth Amendment.” Benton v.
Cameco Corp., 375 F.3d 1070, 1075 (10th Cir. 2004)
(quoting Soma Med. Int'l v. Standard Chartered
Bank, 196 F.3d 1292, 1295 (10th Cir. 1999)). In
Colorado, the state's long arm statute “confers the
maximum jurisdiction permissible consistent with the Due
Process Clause.” Archangel Diamond Corp. v.
Lukoil, 123 P.3d 1187, 1193 (Colo. 2005) (referring to
Colo. Rev. Stat. § 13-1-124). Thus, the Court need only
address the constitutional question of whether the exercise
of personal jurisdiction over the defendants comports with
due process. Dudnikov v. Chalk & Vermillion Fine
Arts, Inc., 514 F.3d 1063, 1070 (10th Cir. 2008) (the
state jurisdictional analysis in Colorado “effectively
collapses into the second, constitutional, analysis”).
Court will accept the well-pled factual allegations of the
complaint as true to determine whether Plaintiffs have made a
prima facie showing that personal jurisdiction
exists. Id. Any factual conflicts arising from
affidavits or other submitted materials are resolved in the
plaintiff's favor. Wenz v. Memery Crystal, 55
F.3d 1503, 1505 (10th Cir. 1995).
a Colorado resident who previously resided in Alaska, alleges
that Defendant, a debt collector with its principal place of
business in Alaska, reported a debt allegedly unpaid by him
to a credit reporting agency, in violation of the FDCPA. (ECF
No. 1 at 3, ¶ 18.) According to Plaintiff's
Complaint, Defendant reported the alleged debt on
plaintiff's credit report, Plaintiff disputed the alleged
debt in a dispute letter sent to Defendant via facsimile on
July 25, 2016. (Id. at 3, ¶¶ 12-13; ECF
No. 8 at 8.) On November 4, 2016, Plaintiff found that
“Defendant had re-reported the credit account to the
bureau(s) in September 2016" and “Defendant failed
to list the account as ‘disputed by consumer'
despite being required to do so by the FDCPA.” (ECF No.
1 at 3, ¶¶ 14-15.) Plaintiff claims that
“[a]s a result of Defendant's deceptive, misleading
and unfair debt collection practices, Plaintiff has been
damaged.” (Id. at 3, ¶ 16.)
does not argue that Defendant is subject to this Court's
general jurisdiction, only that the Court has specific
jurisdiction over the claims in this action. (See
ECF No. 20 at 9.) “A specific jurisdiction analysis
involves a two-step inquiry.” First the Court
“must consider whether the defendant's conduct and
connection with the forum State are such that he should
reasonably anticipate being haled into court here.”
Benton, 375 F.3d at 1075 (internal quotation marks
omitted). “Second if the defendant's actions create
sufficient minimum contacts, [the court] must then consider
whether the exercise of personal jurisdiction over the
defendant offends ‘traditional notions of fair play and
substantial justice.'” OMI, 149 F.3d at
1091 (quoting Asahi Metal Indus. Co.v. Superior Court of
California, Solano Cty., 480 U.S. 102, 113 (1987)).
“‘minimum contacts' standard requires, first,
that the out-of-state defendant must have ‘purposefully
directed' its activities at residents of the forum state,
and second, that the plaintiff's injuries must
‘arise out of' defendant's forum-related
activities.” Dudnikov, 514 F.3d at 1071. The
Court addresses each inquiry in turn.
first step of the Court's analysis may be phrased either
as whether the defendant “‘purposefully
directed' its activities at the forum state” or
“‘purposefully availed' itself of the
privilege of conducting activities or consummating a
transaction in the forum state, ” depending on the
factual context and the nature of the claims.
Dudnikov, 514 F.3d at 1071. The Supreme Court has
made clear that the aim of this inquiry is, in any event,
“to ensure that an out-of-state defendant is not bound
to appear to account for merely ‘random, fortuitous, or
attenuated contacts' with the forum state.”
Id. (quoting Burger King, 471 U.S. at 475.)
additional principles further inform the Court's analysis
here. First, case law makes clear that the requisite
“minimum contacts” “must arise out of
contacts that the ‘defendant himself'
creates with the forum States.” Walden v.
Fiore, 134 S.Ct. 1115, 1122 (2014) (emphasis in
original). Thus, “the unilateral activity of another
party is not an appropriate consideration when determining
whether a defendant has sufficient contacts with a forum
State.” Dudnikov, 514 F.3d at 1073 (internal
quotation marks omitted); accord OMI, 149 F.3d at
the Court's “‘minimum contacts' analysis
looks to the defendant's contacts with the forum State
itself, not the defendant's contacts with persons who
reside there.” Walden, 134 S.Ct. at 1122.
“To be sure, a defendant's contacts with the forum
State may be intertwined with his transactions or
interactions with the plaintiff or other parties. But a
defendant's relationship with a plaintiff or third party,
standing alone, is an insufficient basis for
jurisdiction.” Id. at 1123. Rather, “it